It's always "the other side's" fault. Partisans are incapable of being consistent in laying blame where it is due, since that frequently requires blaming both of the major parties.
Yes, I'm aware it's automatic. However, barring unusual circumstances, having it registered dramatically increases the strength of a given party's case. I didn't intend to imply that he would have no case if he failed to register the mark.
Yes, that's a restatement of what I said. Apple Corps lost the initial ruling, and both parties then settled prior to a ruling on the appeal of the original ruling. The original ruling became entirely moot at that point.
There was little reason for Apple Computer to reach a financial settlement with Apple Corps after receiving a favorable judgement unless Apple Corps had a strong appeals case.
In no way is what I said inappropriate. Trademarks are first-come first-serve. If iCloud used it first, and is in a market where there is a good chance of confusion (software, and software), they have a case. Saying that is not, in any way, presumptuous. It is a simple fact, which is more than adequately qualified for what we know is not known (who knew what, when they knew it, and the date each company first used the mark). Nobody knows who was aware of what at any given time currently, except those party to the lawsuit. If iCloud used it prior, they have a case. If Xcerion used it prior, iCloud has no case to speak of. We do not know which of these is actually the truth at this moment. We also do not know if iCloud was aware of infringement long prior to filing a lawsuit.
As for iCloud Comm, if Apple prevails iCloud will almost certainly be forced to change their name for one reason or another.
I completely agree there are questions that need answered. The biggest is if Xcerion beat them to actually using it commercially, followed by "when did iCloud find out?" Those haven't been answered, and much depends on them. Depending on how they're answered, Xcerion's registration could potentially be invalidated.
Apple Computer originally prevailed in Apple Corps' last suit against them, but settled when Apple Corps appealed the ruling. As far as I know, there has never been a standing ruling in any suit between the two. All cases were eventually settled, though the terms of the last are undisclosed. Since Apple Corps had a good case on appeal, it is likely that the Beatles featuring on iTunes factored heavily in the settlement, with both Apple Corps and Apple Computer making large sums of money on the deal.
Yes, that's what many people are saying. Since they weren't large enough to be on Apple's radar, they should let their business name be steamrolled.
Just because a company doesn't have a national presence in advertising, and so doesn't register a mark nationally (many, many companies don't, and with good reason), doesn't mean an international entity has the right to come along and co-opt their name. If they didn't fight this, the law would no longer protect their use of their own damn name, and Apple could sue them into non-existence and would have the law on their side in doing so.
Unless the application is invalidated due to prior use in commerce, since iCloud Comm used it for years with an actual product prior to Xcerion registering it nationally.
That depends entirely on when (or if) they learned Xcerion registered the mark. As long as they were not aware of the registration, it won't impact their legal case. However, if they were aware of the registration and did nothing about it, they may have a weakened claim. Xcerion never used the mark in commerce though, and iCloud Comm did for years, which helps their case.
iCloud Comm was using the trademark prior to registration by Xcerion. They have a prior use in commerce claim which can be used to invalidate the original trademark application.
If "iCloud Communications" didn't register then obviously Apple did their due diligence.
This is flawed logic. Failure to register a trademark does not invalidate protection under trademark law. Apple may or may not have done due diligence, but that has little to do with the actions of iCloud Comm. Even if Apple was not aware of iCloud Comm's claim to the mark, they still don't have the right to use it under the law. Trademark law can be a nasty business, simply because registration of works is not required for protection.
Anyway, Apple has a long and storied history of actively ignoring trademark claims they absolutely knew they were in violation of, so I'm not inclined to give them the benefit of any doubt.
Except they didn't buy a name from the company who owned it. The company who registered the mark in 2008 should not have been issued the mark, because it was previously used in commerce and in the same field the registering company was registering it for. They purchased a name based on a flawed application, one which is currently being contested.
Apple bought the actual iCloud trademark from the company that actually registered it, years ago.
The application date for the trademark in question is May 29th, 2008. Unless they were using it prior to 2005, they are still in the wrong. Registration of a trademark is not necessary to protect it legally, though it does help. iCloud Communications can have the trademark invalidated based on a claim of previous use in commerce. Apple's purchase of a trademark that was registered later doesn't necessarily protect them legally. They have a long history of strong-arming naming rights though, and they'll likely get their way this time as well. What remains to be seen is how well or badly it turns out for the company who is legally in the right (iCloud Comm.).
I'd say that too, but have you seen some of the legal crap these companies try to pull? In 5 years, this may not be something that's shocking. Just sayin'.
PayPal is almost entirely dependent on those same banks, so talking about how evil they are doesn't add anything to the conversation. Except, perhaps, to say that PayPal requires a greater evil to exist as a lesser evil.
Oh, I did indeed miss your point. A developer lock-in will have no legal bearing on anything. It's a symptom, and will never come to the forefront of any legal issue regarding Apple's market leverage. The lock-in is irrelevant so long as Apple does not display an ability to control the overall smartphone market. What they do with the app market for their own devices is also irrelevant to any monopoly issue unless and until they display an ability to impose sanctions on the smartphone market as a whole.
There is no serious lack of apps on other platforms. What exists is a lack of consumer scramble to buy every app under the sun on other platforms. There are also free versions of many non-iPhone apps, which depresses the economic potential of other platforms from a developer perspective. From a consumer perspective, however (which is all that matters for the health of a platform), things are just fine. Sales of non-iPhone smartphones repeatedly confirm that the Apple app market does not lead the overall smartphone market around by the nose. Until it does, a "developer monopoly" is meaningless to anyone but developers. If they want to develop for other platforms, they have to accept that they will not be able to market them in exactly the same manner as on the Apple app store.
In the end, the smartphone market distribution probably says a lot about what people expect from their phones. iPhones users are willing to pay more, buy more, etc. Other platforms excel at other things, like security or IT integration and control. The app market is just one aspect of the smartphone ecosystem. It should not be taken as the only metric that is important, nor is it necessarily the top metric to consider. One person's needs are not necessarily the same as another's.
If nobody buys apps on other platforms because of Apple leveraging of their power, that would be one thing. I doubt you'd have an easy time proving that to be the case though.
People choosing not to for other reasons does not constitute a legitimate cause for legal action. The fact that Apple has control of the marketplace where the majority of applications are sold for a platform that does not dominate the market doesn't mean a thing in any meaningful legal sense.
I'm aware obviousness applies to patent applications, but have never seen anything that relates to obviousness in trademark art. At the very least, it's not mentioned anywhere readily findable through the USPTO. Then again, that doesn't necessarily mean anything.:)
If you were to take any major trademark, modify it slightly so that it had different colors and perhaps slightly different geometry, you'd still lose a trademark infringement case. It doesn't apply to all combinations of those symbols, but the two are more than substantially similar in this case.
If we go off a per device basis, then the iPhone with iOS is most popular.
The iPhone is behind both Android and Symbian in devices that can make cellular calls, which was the beginning and end of the point that they do not possess significant enough market share to be considered a monopoly in anything.
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It's always "the other side's" fault. Partisans are incapable of being consistent in laying blame where it is due, since that frequently requires blaming both of the major parties.
Yes, I'm aware it's automatic. However, barring unusual circumstances, having it registered dramatically increases the strength of a given party's case. I didn't intend to imply that he would have no case if he failed to register the mark.
I misread a source article regarding the issue. I retract my statement.
Yes, that's a restatement of what I said. Apple Corps lost the initial ruling, and both parties then settled prior to a ruling on the appeal of the original ruling. The original ruling became entirely moot at that point.
There was little reason for Apple Computer to reach a financial settlement with Apple Corps after receiving a favorable judgement unless Apple Corps had a strong appeals case.
That's rather presumptuous.
In no way is what I said inappropriate. Trademarks are first-come first-serve. If iCloud used it first, and is in a market where there is a good chance of confusion (software, and software), they have a case. Saying that is not, in any way, presumptuous. It is a simple fact, which is more than adequately qualified for what we know is not known (who knew what, when they knew it, and the date each company first used the mark). Nobody knows who was aware of what at any given time currently, except those party to the lawsuit. If iCloud used it prior, they have a case. If Xcerion used it prior, iCloud has no case to speak of. We do not know which of these is actually the truth at this moment. We also do not know if iCloud was aware of infringement long prior to filing a lawsuit.
As for iCloud Comm, if Apple prevails iCloud will almost certainly be forced to change their name for one reason or another.
I completely agree there are questions that need answered. The biggest is if Xcerion beat them to actually using it commercially, followed by "when did iCloud find out?" Those haven't been answered, and much depends on them. Depending on how they're answered, Xcerion's registration could potentially be invalidated.
In a word: stupidity.
Apple Computer originally prevailed in Apple Corps' last suit against them, but settled when Apple Corps appealed the ruling. As far as I know, there has never been a standing ruling in any suit between the two. All cases were eventually settled, though the terms of the last are undisclosed. Since Apple Corps had a good case on appeal, it is likely that the Beatles featuring on iTunes factored heavily in the settlement, with both Apple Corps and Apple Computer making large sums of money on the deal.
Yes, but iCloud doesn't produce Holy Software, so they are obviously not in the same industry.
Yes, that's what many people are saying. Since they weren't large enough to be on Apple's radar, they should let their business name be steamrolled.
Just because a company doesn't have a national presence in advertising, and so doesn't register a mark nationally (many, many companies don't, and with good reason), doesn't mean an international entity has the right to come along and co-opt their name. If they didn't fight this, the law would no longer protect their use of their own damn name, and Apple could sue them into non-existence and would have the law on their side in doing so.
Unless the application is invalidated due to prior use in commerce, since iCloud Comm used it for years with an actual product prior to Xcerion registering it nationally.
That depends entirely on when (or if) they learned Xcerion registered the mark. As long as they were not aware of the registration, it won't impact their legal case. However, if they were aware of the registration and did nothing about it, they may have a weakened claim. Xcerion never used the mark in commerce though, and iCloud Comm did for years, which helps their case.
iCloud Comm was using the trademark prior to registration by Xcerion. They have a prior use in commerce claim which can be used to invalidate the original trademark application.
But Apple wasn't sued over a trademark, they were sued over the name
Most trademarks are nothing more than names. Just because something is not a design mark does not make it ineligible for protection as a word mark.
If "iCloud Communications" didn't register then obviously Apple did their due diligence.
This is flawed logic. Failure to register a trademark does not invalidate protection under trademark law. Apple may or may not have done due diligence, but that has little to do with the actions of iCloud Comm. Even if Apple was not aware of iCloud Comm's claim to the mark, they still don't have the right to use it under the law. Trademark law can be a nasty business, simply because registration of works is not required for protection.
Anyway, Apple has a long and storied history of actively ignoring trademark claims they absolutely knew they were in violation of, so I'm not inclined to give them the benefit of any doubt.
Except they didn't buy a name from the company who owned it. The company who registered the mark in 2008 should not have been issued the mark, because it was previously used in commerce and in the same field the registering company was registering it for. They purchased a name based on a flawed application, one which is currently being contested.
Apple bought the actual iCloud trademark from the company that actually registered it, years ago.
The application date for the trademark in question is May 29th, 2008. Unless they were using it prior to 2005, they are still in the wrong. Registration of a trademark is not necessary to protect it legally, though it does help. iCloud Communications can have the trademark invalidated based on a claim of previous use in commerce. Apple's purchase of a trademark that was registered later doesn't necessarily protect them legally. They have a long history of strong-arming naming rights though, and they'll likely get their way this time as well. What remains to be seen is how well or badly it turns out for the company who is legally in the right (iCloud Comm.).
I'd say that too, but have you seen some of the legal crap these companies try to pull? In 5 years, this may not be something that's shocking. Just sayin'.
PayPal is almost entirely dependent on those same banks, so talking about how evil they are doesn't add anything to the conversation. Except, perhaps, to say that PayPal requires a greater evil to exist as a lesser evil.
Oh, I did indeed miss your point. A developer lock-in will have no legal bearing on anything. It's a symptom, and will never come to the forefront of any legal issue regarding Apple's market leverage. The lock-in is irrelevant so long as Apple does not display an ability to control the overall smartphone market. What they do with the app market for their own devices is also irrelevant to any monopoly issue unless and until they display an ability to impose sanctions on the smartphone market as a whole.
There is no serious lack of apps on other platforms. What exists is a lack of consumer scramble to buy every app under the sun on other platforms. There are also free versions of many non-iPhone apps, which depresses the economic potential of other platforms from a developer perspective. From a consumer perspective, however (which is all that matters for the health of a platform), things are just fine. Sales of non-iPhone smartphones repeatedly confirm that the Apple app market does not lead the overall smartphone market around by the nose. Until it does, a "developer monopoly" is meaningless to anyone but developers. If they want to develop for other platforms, they have to accept that they will not be able to market them in exactly the same manner as on the Apple app store.
In the end, the smartphone market distribution probably says a lot about what people expect from their phones. iPhones users are willing to pay more, buy more, etc. Other platforms excel at other things, like security or IT integration and control. The app market is just one aspect of the smartphone ecosystem. It should not be taken as the only metric that is important, nor is it necessarily the top metric to consider. One person's needs are not necessarily the same as another's.
If nobody buys apps on other platforms because of Apple leveraging of their power, that would be one thing. I doubt you'd have an easy time proving that to be the case though.
People choosing not to for other reasons does not constitute a legitimate cause for legal action. The fact that Apple has control of the marketplace where the majority of applications are sold for a platform that does not dominate the market doesn't mean a thing in any meaningful legal sense.
You don't understand what a monopoly is in the legal sense.
Your comment makes sense only as much as saying HP is the primary and only market for new HP systems, and is therefore a monopoly.
Apple is not the primary and only market for smartphones, which is the point. It's not even #2.
I'm aware obviousness applies to patent applications, but have never seen anything that relates to obviousness in trademark art. At the very least, it's not mentioned anywhere readily findable through the USPTO. Then again, that doesn't necessarily mean anything. :)
If you were to take any major trademark, modify it slightly so that it had different colors and perhaps slightly different geometry, you'd still lose a trademark infringement case. It doesn't apply to all combinations of those symbols, but the two are more than substantially similar in this case.
If we go off a per device basis, then the iPhone with iOS is most popular.
The iPhone is behind both Android and Symbian in devices that can make cellular calls, which was the beginning and end of the point that they do not possess significant enough market share to be considered a monopoly in anything.
Nope, it's actually 3M.